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Analysis

Supreme Court Will Weigh in on Evidence Dispute in Citizenship Question Lawsuits

What you need to know

November 16, 2018

Today, the Supreme Court announced that it will wade into the long-running dispute over the evid­ence in lawsuits chal­len­ging the Commerce Depart­ment’s contro­ver­sial decision to add a citizen­ship ques­tion to the 2020 census. This dispute is import­ant, but narrow: The Court won’t be weigh­ing in on the under­ly­ing ques­tion of whether the decision to add the citizen­ship ques­tion was illegal. Here’s what the Court’s latest announce­ment is all about.

What issues will the Supreme Court be decid­ing?

The Court will decide whether the trial-court judge in New York correctly allowed the groups chal­len­ging the citizen­ship ques­tion to obtain docu­ments and other inform­a­tion from the federal govern­ment beyond what’s in the offi­cial admin­is­trat­ive record (the set of docu­ments that the Commerce Depart­ment claims it relied upon when it decided to add the ques­tion). 

Normally, in cases chal­len­ging a federal agency’s actions, the chal­lengers are limited to making their case based on the admin­is­trat­ive record alone. Here, however, the trial judge found suffi­cient evid­ence that Commerce Secret­ary Wilbur Ross made the citizen­ship ques­tion decision in bad faith and ruled that the chal­lengers could there­fore seek more docu­ments from the govern­ment to get the full story behind his decision-making process. The judge also allowed them to ques­tion Secret­ary Ross and other high-rank­ing offi­cials under oath. 

The Supreme Court had already tempor­ar­ily blocked the ques­tion­ing of Secret­ary Ross while it was decid­ing whether or not to take the case. Now, the Trump admin­is­tra­tion wants the Supreme Court to hold that none of the extra-record evid­ence should be allowed into the cases, includ­ing the testi­mony of Secret­ary Ross and John Gore, a high-rank­ing Justice Depart­ment offi­cial who was involved in the decision to add the citizen­ship ques­tion. The plaintiffs recently ques­tioned Gore under oath and his testi­mony is currently part of the trial record.

How could the Court’s decision affect the outcome of the cases?

The Supreme Court’s decision will affect what evid­ence the plaintiffs will be able to use to prove their legal claims that the Commerce Depart­ment viol­ated the law. The viol­a­tions involve the Admin­is­trat­ive Proced­ure Act, which regu­lates how federal agen­cies can make decisions, and the Fifth Amend­ment to the U.S. Consti­tu­tion, which guar­an­tees every­one equal protec­tion under the law. If the Supreme Court over­turns the trial court’s rulings, then the chal­lengers will be limited to the evid­ence in the admin­is­trat­ive record. They won’t be able to use the testi­mony of John Gore, and they won’t be able to ques­tion Secret­ary Ross. 

The Court won’t be ruling on the under­ly­ing ques­tion driv­ing the lawsuits: whether Secret­ary Ross viol­ated the law when he added the citizen­ship ques­tion. That dispute will wait for another day.

What happens next?

The Supreme Court will hear oral argu­ment on the issue on Febru­ary 19, 2019. For the time being, the cases in the trial courts are proceed­ing as normal. Trial in New York wrapped up yester­day, and the final argu­ments are sched­uled for Tues­day, Novem­ber 27. The judge could issue a decision by early Decem­ber. Cases in Cali­for­nia and Mary­land are set for trial in Janu­ary.

(Image: Shut­ter­stock.com)